Image: GNS Science
The Auckland High Court has finished its hearing over the Whakaari White Island owners appeal of its 2019 eruption conviction.
Whakaari Management Limited was fined $1 million and ordered to pay $4.8 million in victim reparations, for breaching the Health and Safety at Work Act (HASWA) prior to the deadly 2019 eruption that killed 22 people.
The company's directors, James, Andrew, and Peter Buttle, are appealing the criminal conviction in the Auckland High Court.
Whakaari Management Limited told the High Court, tour safety responsibility fell on tour operators.
WorkSafe prosecutor Kristy McDonald said WML managed an active volcano as a workplace, licensing land to tour operators.
"The land was an active volcano and uncontrollable hazard. Its business, the way it generated revenue, was to charge licence fees and commissions for permitting tour operators and tourists to walk on the very top of a live volcano crater."
McDonald said WML permitted others to conduct work on its land and stipulated the terms.
"In those circumstances, it is uncontroversial that WML had a duty to ensure, as far as reasonably practicable, that the workplace it was granting access to was without risks to health and safety of any person."
The trial into the eruption, heard how WML relied on risk assessments done by tour operators.
McDonald said the company reliance on tour operators risk assessments, could only go, so far.
WML had to do more, than rely solely on risk assessments by operators, McDonald said.
"You still had to get expert advice on whether they were adequate and how they applied to your business. Because you're running a business where you've got a workplace, access to a workplace and an extraordinary risk."
The focus of the appeal hearing is on section 37 of the Health and Safety at Work Act (HASWA), which requires the person controlling or managing a workplace to ensure anything arising from the workplace, including entries and exits, are without health and safety risks.
WML lawyer Rachael Reed told the High Court on Tuesday tour operators were responsible for the "parameters of those tours" and tourists' safety.
Reed said the tour operators controlled and managed the risks arising from their use of the workplace."
"Without those tours operating, they would not have been harmed, and the tours were the activity that created the risk and placed the people in harm's way."
WML lawyer James Cairney said Wedensday there's no business relationship between WML and operators, other than the license.
"There's no practical control, there's no shot calling, there's no direction and there's no managing by Whakaari Management Limited."
Cairney said WML had no say in how operators run their health and safety plans, giving them full rein.
He said there's little evidence, WML breached its health and safety duty "not because of some technicality."
"Whakaari Management Limited did not control the tour activity and did not control the walking tour workplace.
High Court judge, Justice Simon Moore has reserved his decision and did not set a definite date for his verdict.
WML was one of 13 parties charged by Worksafe over pre-eruption health and safety breaches.
Some pleaded guilty, including helicopter companies Volcanic Air, Aerius and Kahu, White Island Tours, Inflite Charters and GNS Science while charges against other parties were dismissed.